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  4. DBN v Chief Executive, Blue Card Services, Justice Services, Department of Justice and Attorney-General - [2016] QCAT 389

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DBN v Chief Executive, Blue Card Services, Justice Services, Department of Justice and Attorney-General[2016] QCAT 389

DBN v Chief Executive, Blue Card Services, Justice Services, Department of Justice and Attorney-General[2016] QCAT 389

CITATION:

DBN v Chief Executive, Blue Card Services, Justice Services, Department of Justice and Attorney-General [2016] QCAT 389

PARTIES:

DBN

(Applicant)

 

v

 

Chief Executive, Blue Card Services, Justice Services, Department of Justice and Attorney-General
(Respondent)

APPLICATION NUMBER:

CML098-16

MATTER TYPE:

Children's matters

HEARING DATE:

26 and 27 September 2016

HEARD AT:

Brisbane

DECISION OF:

Member Deane

DELIVERED ON:

24 October 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The name of the respondent is changed to Chief Executive, Blue Card Services, Justice Services, Department of Justice and Attorney-General.
  2. The decision dated 14 April 2016 that DBN’s case is ‘exceptional’ is set aside and replaced with the Tribunal’s decision that there is no exceptional case.
  3. The Tribunal prohibits the publication of any information, which may identify DBN and his family.
  4. The reasons for decision are to be published in a de-identified format only. 
  5. The Registry is directed to send the decision together with the reasons for decision to the parties by email.

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW – BLUE CARD – where convicted of an offence other than a ‘serious offence’ – where applicant denies the facts of the charge despite a guilty finding - whether an exceptional case – where offence was ‘out of character’ – where significant protective factors

NON PUBLICATION  - Whether a non-publication order ought to be made to avoid endangering the health or safety of a person

Working With Children (Risk Management & Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 353, s 354, s 358, s 360

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24, s 66

Evidence Act 1977 (Qld), s 79

Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492

WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190

APPEARANCES:

 

APPLICANT:

DBN

RESPONDENT:

Chief Executive, Blue Card Services, Justice Services, Department of Justice and Attorney-General

REPRESENTATIVES:

 

APPLICANT:

DBN in person

RESPONDENT:

Represented by Mr JJ Thompson, in house Counsel

REASONS FOR DECISION

  1. [1]
    DBN held a positive notice or ‘Blue Card’ under the Working With Children (Risk Management & Screening) Act 2000 (Qld) (the Act) since at least 30 May 2011[1] until a negative notice was issued on 14 April 2016.[2]  Immediately prior to the issue of the negative notice DBN was employed as a chaplain and a teacher’s aide at a high school in Queensland.  At the time of the hearing, he was essentially unemployed, undertaking further studies and performing some casual work, including as a private counsellor.
  2. [2]
    Initially he held a volunteer card.  He subsequently successfully applied to transfer his volunteer card to a paid employee card.  The evidence is that in 2014, DBN successfully applied to renew his positive notice.[3]  In 2015, DBN was charged with an offence of common assault.  Upon this information coming to the Chief Executive Officer’s attention DBN’s eligibility to hold a ‘blue card’ was re-assessed.   
  3. [3]
    DBN seeks review of the decision made 14 April 2016 that an exceptional case exists in which it would not be in the best interests of children for a positive notice to be issued.  This decision had the consequence that the previously issued positive notice was cancelled and a negative notice issued.  Such a decision is a chapter 8 reviewable decision under the Act, which the Tribunal may review.[4] 
  4. [4]
    The Tribunal is to consider the matter afresh and decide the matter on its merits.  The purpose of the review is to produce the correct and preferable decision.[5]   In such a review proceeding, I may confirm or amend the decision, set aside the decision and substitute my own decision or set aside the decision and return it to the decision maker with or without directions.[6] 
  5. [5]
    Since DBN commenced the review application, he was found guilty on the charge of common assault.  The Magistrate did not record a conviction.

Is DBN’s an exceptional case, whereby the issuing of a positive notice would not be in the best interest of children?

  1. [6]
    I find that DBN’s case is not ‘exceptional’.  The decision of 14 April 2016 should be set aside and replaced with the Tribunal’s decision.
  2. [7]
    The object of the Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland through risk management strategies and screening persons employed in particular employment.[7]   The Act is to be administered having regard to the principles that the welfare and best interests of a child are paramount and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[8]  
  3. [8]
    The decision under review is a child-related employment decision.[9] Such decisions are to be reviewed under the principle that the welfare and best interests of a child are paramount.[10] 
  4. [9]
    A positive notice must issue unless the Chief Executive, or the Tribunal in the Chief Executive’s place, is satisfied that it is an exceptional case, in which it would not be in the best interests of children for the Chief Executive to issue a positive notice.[11]
  5. [10]
    The Act does not define what is an ‘exceptional case’.  The Court of Appeal provided some guidance in Commissioner for Children and Young People and Child Guardian v Maher & Anor.[12] The Court of Appeal accepted that identifying and weighing risk factors and protective factors was an appropriate approach and found that it would be unwise to lay down any general rule, as each case is to be determined on its own facts and circumstances.
  6. [11]
    Section 226 of the Act sets out mandatory considerations to which regard is to be had, when deciding whether there is an exceptional case, where the person has been convicted of or charged with an offence.  I address the considerations below.
  7. [12]
    DBN has not been charged with or convicted of a ‘serious offence’.
  8. [13]
    DBN has been charged with and been convicted of a number of offences over the period 1983 – 2016.  The criminal history information revealed two appearances in the Children’s Court in 1983 and 1984.  DBN was fined $100 and $150 with and without conviction with some charges being dismissed or withdrawn.  The record shows the next Court appearance was in 2007.  Given this passage of time, I place little to no weight on the offending conduct in 1983 and 1984.
  9. [14]
    The more recent criminal history was as follows:
    1. Unlawful stalking, wilful damage, 2007.  The offending conduct occurred in 2006.  DBN was fined $500, with and without conviction and a non-contact order made for a period of two years.
    2. Possession of unregistered firearm, 2011.  The offending conduct occurred in 2011.  DBN was fined $400 with no conviction recorded.
    3. Common assault, 23 May 2016.  The offending conduct occurred in April 2015. DBN was fined $1,000 without conviction.  This penalty is to be viewed against the maximum penalty for such an offence of 3 years imprisonment.  This gives some indication of its relative seriousness for such offences.
  10. [15]
    The Chief Executive contends that of particular concern is DBN’s offending in 2006 and 2015.  The Chief Executive contends that such behaviour suggests that DBN

may lack the ability to manage aggression and has a propensity to react aggressively or violently to situations of conflict or when feeling personally aggrieved.  This is of direct relevance to his eligibility to continue working with children because it suggests that he may not have the conflict resolution and anger management skills necessary to work with children where situations of conflict may be expected to occur, either with children or in the presence of children.[13]

  1. [16]
    The behaviour in 2006 consisted of unlawfully stalking a married couple after a business relationship deteriorated, with DBN making verbal threats to the welfare of the couple and their children.   
  2. [17]
    The behaviour in 2015 consisted of DBN spitting in his ex-wife’s partner’s open mouth after an argument with his ex-wife and her partner in relation to arrangements for the handover of DBN’s and his ex-wife’s son.  
  3. [18]
    In view of the dates of the various offences, DBN had been convicted of offences other than a ‘serious offence’ as defined under the Act prior to the initial application for a volunteer card, transfer to an employee card and the renewal in 2014.  The criminal history, other than the common assault charge, should have been known to the Chief Executive at those times and in particular at the time of the successful renewal in 2014. 
  4. [19]
    The Chief Executive contends that the recency of the common assault charge and finding of ‘guilty’ is a significant risk factor given, that it reflects a continuation of offending behaviour over a significant period of time. 
  5. [20]
    Offences relating to violence, aggression and intimidation are relevant to employment that may involve children.  Exposure to such behaviours may not be in the best interest of children physically or emotionally. 
  6. [21]
    The Chief Executive acknowledges that the conduct occurred when DBN’s son was nearby and would have been aware that an argument was occurring but otherwise the offending did not involve children. DBN’s evidence is that his son was situated in his car playing with his tablet when the 2015 incident occurred and was not directly involved in the altercation. 
  7. [22]
    The evidence is, and I accept, that DBN is a loving, caring and supportive father to his son.
  8. [23]
    During the hearing I arranged for the recording of the Magistrate’s oral reasons for his decision in respect of the common assault charge to be played to enable me to have regard to the mandatory matter set out in s 226(2)(a)(v) of the Act.  The Magistrate’s reasons for the penalty imposed and not recording a conviction included a finding that the incident was ‘out of character’ for DBN, stemmed from an acrimonious marriage breakdown and the penalty would affect DBN’s ability to continue in his profession.
  9. [24]
    No information or reports in relation to DBN as described under section 226 (2)(b) – (d) of the Act nor reasons for decisions in respect of DBN’s previous convictions were in evidence before me.
  10. [25]
    In respect of the 2006 offending behaviour, DBN admitted that his actions were excessive, caused by frustration and that he acted out of fear of his then business partner in pursuing recovery of the money owed and recovery of the goods in the possession of the complainants. 
  11. [26]
    The male complainant in respect of that charge gave evidence in these proceedings that pressing charges was a strategy to avoid paying DBN what was owed and that DBN’s offending behaviour had been overstated in those proceedings.  In addition to this evidence, I take into account that quite some time elapsed between the 2006 stalking conduct and the 2015 incident with no similar allegations in the interim. 
  12. [27]
    DBN gave evidence that he suffered depression upon the break-up of his marriage in 2011 and that there were physical altercations with his ex-wife including an attempt to run him over.  This and other events led to a number of domestic violence orders being made.
  13. [28]
    The evidence is, and I accept, that since the offending conduct in 2006 DBN has taken significant steps to address his behaviour and more recently to accept his marriage breakdown. 
  14. [29]
    DBN has demonstrated some insight into the wrongfulness of his earlier offending behaviour.  He acknowledges that he behaved poorly in the verbal exchange with his ex-wife’s partner in 2015.  However, he maintains that he did not (intentionally or accidentally) spit into the mouth of his ex-wife’s partner.  He contends that his ex-wife and her partner’s allegations were untruthful and motivated by a desire to alter the access and schooling arrangements of his son.  The Magistrate’s findings indicate that these or substantially similar contentions were made during that hearing and were not accepted by him.  DBN pleaded not guilty to the offence but after a contested hearing, the Magistrate did not accept his evidence, found him guilty as charged and also imposed a domestic violence order.
  15. [30]
    I accept that whilst it is appropriate to have regard to the circumstances of the offending behaviour I ought not to make findings that go behind the Magistrate’s finding of guilt in these circumstances.[14] 
  16. [31]
    A large number of witnesses provided written references, the references were given with knowledge of DBN’s criminal history and most of the witnesses were available to give oral evidence, be cross-examined by the Chief Executive’s representative and to be questioned by me during the hearing. 
  17. [32]
    The evidence is, and I accept, that:
    1. DBN has undertaken therapy and formal training to assist others and himself, including obtaining a diploma of counselling in June 2015[15] and training in best practice anger management, in respect of which he is now a facilitator. 
    2. since 2008 he has participated and continues to participate in the Mankind Project, a men’s support and development group, where he builds his skills, including communication skills, gentle leadership skills and skills of detachment to aggressive behaviours directed towards him.  He regularly attends the weekly group support meeting. 
  18. [33]
    A number of the witnesses gave evidence of DBN’s involvement in the Mankind Project and his personal development over the years they have known him.  I accept that he has the support of this group and also has particular support and receives mentoring from a number of leaders of this group.
  19. [34]
    DBN’s evidence is that he practices mindfulness and neuro-linguistic programming techniques to focus on the potential for conflict and staying calm.  He has sought one on one counselling from a retired psychiatrist, who he met through the Mankind Project.  In order to avoid situations of conflict, and no doubt to comply with the domestic violence orders, he now parks his vehicle within CCTV camera range and remains in his vehicle when his son’s access handovers occur.  He no longer engages in face to face contact with his ex-wife.
  20. [35]
    The Chief Executive’s final submissions acknowledged that DBN had learnt to avoid situations of conflict by walking away and that this was evidenced, at least in part, by DBN walking away from the 2015 incident before the conflict escalated into more physical conflict.  
  21. [36]
    I regard these steps and the support DBN seeks and receives are substantial protective factors.
  22. [37]
    Significantly, the principal of the high school where DBN was previously employed as a chaplain and teacher’s aide gave evidence:
    1. of a number of instances where DBN had been a calming influence despite aggression directed toward him and where DBN had been a positive role model for the students, particularly boys and a valuable contributor to the school community;
    2. that DBN had shown that he had skills and the ability to placate and manage conflict in times of heightened crisis;
    3. that he would have no hesitation in welcoming him back to the school once a positive notice was issued; and
    4. that based on his experience with DBN he disagreed with the Chief Executive’s assessment of DBN as outlined earlier in these reasons.[16]
  23. [38]
    In addition to the principal, a teacher with whom DBN worked as an aide   also gave evidence of instances where DBN had been a calming agent and positive role model particularly for boys.  She gave evidence that:
    1. DBN had sought her assistance particularly with issues arising out of his relationship with his ex-wife;
    2. they provided mutual support to each other to debrief and discuss situations encountered;
    3. based on her experience with DBN she disagreed with the Chief Executive’s assessment of DBN as outlined earlier in these reasons.[17]  
  24. [39]
    The written reference from the school guidance officer is consistent with the school principal’s and teacher’s evidence.
  25. [40]
    A former lecturer in Human Services[18] who has known DBN since 2004 gave evidence:
    1. that he has never known DBN to act aggressively toward a child;
    2. of a number of instances where DBN had counselled children or young people with positive outcomes and where DBN had diffused situations of conflict;
    3. that DBN has the capacity to manage aggression toward his ex-wife a lot better now than in the past;
    4. he has never seen DBN aggressive toward any person other than his ex-wife;
    5. he would not have any concern with DBN being issued with a positive notice even though it is fully transferable.
  26. [41]
    The founder of the Mankind Project in Australia, who is now retired but was previously a professional counsellor for approximately 10 – 12 years, gave evidence:
    1. that he first met DBN about 10 years ago;
    2. of instances where DBN had maintained calm in the face of conflict;
    3. he had seen DBN develop a maturity in the last 18 months when doing pastoral work;
    4. that DBN was a positive role model;
    5. that DBN had expressed remorse that he did not handle the 2015 incident better; and
    6. based on his experience and knowledge of DBN disagreed with the Chief Executive’s observations stated earlier in these reasons.[19]
  27. [42]
    A number of other witnesses, who have observed and interacted with DBN in the context of the men’s support group, also gave evidence of instances where DBN had maintained calm in the face of conflict and based on their experience and knowledge of DBN disagreed with the Chief Executive’s observations stated earlier in these reasons.[20]
  28. [43]
    There is no evidence that DBN has acted violently or inappropriately with children or young people. The performance of DBN in his role of counsellor, school chaplain and teacher’s aide is spoken of extremely highly. 
  29. [44]
    I accept that he has demonstrated ability to handle situations of aggression directed at him in the school context.  The Chief Executive accepted the principal’s evidence of such matters and noted that this was a protective factor.  I also accept that he has demonstrated ability to handle situations of aggression directed at him in the men’s support group context.    
  30. [45]
    All of the evidence before me is consistent with the Magistrate’s finding that the 2015 incident was an isolated incident, which was out of character for DBN.  The evidence is that DBN continues to strive for personal development and to learn from his experiences. 
  31. [46]
    The relationship with DBN’s ex-wife necessarily continues because of the ongoing interaction required over their son’s needs.  This is a risk factor that there may be future incidents of conflict.  However, I accept that DBN now has a heightened awareness of the need to avoid conflict in those interactions and has taken steps to avoid future conflict.
  32. [47]
    During the final submissions, DBN offered to be subjected to supervisory conditions.  The Act does not provide for issuing of a positive notice subject to conditions.       
  33. [48]
    Weighing all of the protective factors in this matter against the risk factors I am not satisfied that this is an exceptional case where it would not be in the best interests of children to issue a positive notice.  I am not satisfied that there is an unacceptable prospect of reoccurrence of an incident in the nature of the 2015 offending conduct to found a future fear for the welfare of children.

Non-publication order

  1. [49]
    During the final submissions, DBN requested that I make a non-publication order to protect his son from abuse arising out of his identification in these proceedings.  There is a presumption that Tribunal decisions are made and reported in a transparent way.  However, that presumption may be rebutted in certain circumstances.[21]  I accept that the publication of these reasons in a way, which identifies DBN will necessarily identify his son, a pre-teen child and that there is a risk that this will endanger the physical or mental health or safety of a child.  I therefore find that the reasons ought to be published in a de-identified form.     

Change in name of Respondent

  1. [50]
    Since the hearing of this matter administrative changes have occurred.  The responsibility for administering ‘blue cards’ now rests with the Chief Executive, Blue Card Services, Justice Services, Department of Justice and Attorney-General.  I amend the name of the respondent to reflect this change. 

Footnotes

[1]DBN’s evidence was that he first obtained a volunteer card in 2004 as he was working with children in a church context.  The Chief Executive’s records as summarised in Exhibit 12 show 2011.

[2]Exhibit 16, PSBA-061-PSBA-065.  I note that Exhibit 12 indicates a negative notice issued on 19 May 2015, which appears inconsistent with any other evidence before me including that DBN was requested to provide submissions by letter dated 23 September 2015 (Exhibit 16, PSBA-024) prior to the decision under review.

[3]Exhibit 12.

[4] Working With Children (Risk Management & Screening) Act 2000 (Qld) (the Act) s 353, s 354.

[5] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20 (QCAT Act).

[6]Ibid, s 24.

[7]The Act s 5.

[8]Ibid, s 6.

[9]The Act s 358.

[10]Ibid, s 360.

[11]Ibid, s 221.

[12][2004] QCA 492.

[13]Exhibit 16, PSBA-058.

[14] Evidence Act 1977 (Qld) s 79. WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190.

[15]Exhibit 16, PSBA - 043 – PSBA-044.

[16]At [15].

[17]Ibid.

[18]Holds a Masters in Human Services, is a former research fellow at a university and lectured in child protection.

[19]At [15].

[20]Ibid.

[21]QCAT Act s 66.

Close

Editorial Notes

  • Published Case Name:

    DBN v Chief Executive, Blue Card Services, Justice Services, Department of Justice and Attorney-General

  • Shortened Case Name:

    DBN v Chief Executive, Blue Card Services, Justice Services, Department of Justice and Attorney-General

  • MNC:

    [2016] QCAT 389

  • Court:

    QCAT

  • Judge(s):

    Member Deane

  • Date:

    24 Oct 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
2 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190
2 citations
Jump To
Cite 1 - [2015] QCATA 190
Cite 2 - [2015] QCATA 190

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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